Reed v. Bolling et al
Filing
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MEMORANDUM OPINION. Signed by Judge Annemarie Carney Axon on 9/19/2018. (TLM, )
FILED
2018 Sep-19 AM 09:57
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ANTONIO DEON REED,
Petitioner,
v.
LEON BOLLING, et al.,
Respondents.
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Case No.: 2:17-cv-01843-ACA-TMP
MEMORANDUM OPINION
This matter is before the court for a writ of habeas corpus filed by Petitioner
Antonio Deon Reed, pro se, on November 2, 2017. (Doc. 1). Mr. Reed challenges
his 2010 conviction for capital murder in the Circuit Court of Jefferson County,
Alabama. (Id. at 1–2). On August 23, 2018, the magistrate judge to whom the case
was referred entered a report and recommendation pursuant to 28 U.S.C. § 636(b),
recommending that habeas relief be denied. (Doc. 10). Mr. Reed has filed timely
objections to the report and recommendation. (Doc. 11).
Mr. Reed concedes that his claims are time-barred, but asserts he is entitled to
equitable tolling because he is actually innocent, as set forth in McQuiggin v.
Perkins, 569 U.S. 383 (2013). More specifically, Mr. Reed argues that he is actually
innocent of capital murder because his confession occurred after he requested an
attorney. (Doc. 11 at 1). In McQuiggin, the Supreme Court held that a claim of
“actual innocence, if proved, serves as a gateway” to overcome the expiration of the
statute of limitations. Id. 569 U.S. at 386. However, a claim of actual innocence
“requires petitioner to support his allegations of constitutional error with new
reliable evidence—whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence—that was not presented at trial.”
Schlup v. Delo, 513 U.S. 298, 324 (1995). “To establish the requisite probability,
the petitioner must show that it is more likely than not that no reasonable juror would
have convicted him in the light of the new evidence.” Id. at 327. In McQuiggin, the
Court “stress[ed] . . . that the Schlup standard is demanding” and that “[t]he gateway
should open only when a petition presents ‘evidence of innocence so strong that a
court cannot have confidence in the outcome of the trial unless the court is also
satisfied that the trial was free of nonharmless constitutional error.’” McQuiggin,
513 U.S. at 401 (quoting Schlup, 513 U.S. at 316).
In contrast, a habeas petitioner is not entitled to equitable tolling simply
because he alleges constitutional violations at his trial or sentencing. Cole v.
Warden, Georgia State Prison, 768 F.3d 1150, 1158 (11th Cir. 2014). Actual
innocence requires a showing of “factual innocence, not mere legal insufficiency.”
See McKay v. United States, 657 F.3d 1190, 1197 (11th Cir. 2011) (quoting Bousley
v. United States, 523 U.S. 614, 623 (1998)). Here, the issue of whether Mr. Reed’s
confession was properly procured addresses legal innocence, rather than factual
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innocence. See e.g., Woulard v. Sec’y, Dep’t of Corr., 707 Fed.App’x 631, 635 (11th
Cir. 2017) (finding petitioner’s contention that if his attorney had filed a motion to
suppress the State would not have been able to prove he committed the crime and
therefore he would not have pled guilty, demonstrated legal innocence but failed to
meet the “high bar of providing new evidence that supports factual innocence”). Mr.
Reed has failed to present any new evidence showing he is actually innocent of
capital murder. See Schlup, 513 U.S. at 324. Additionally, Mr. Reed concedes that
his petition was not timely filed. Because Mr. Reed does not establish a proper basis
warranting equitable tolling, under the McQuiggin actual innocence exception or
otherwise, the petition must be dismissed as time-barred.
Mr. Reed also asserts that Ala. Code § 13A–5–42 (1975), under which he was
convicted, requires that his guilt be proved beyond a reasonable doubt by a jury and
describes this requirement as jurisdictional. (Doc. 11 at 2). However, nothing in
this objection identifies a finding of fact or conclusion of law with which Mr. Reed
disagrees. As noted in the report and recommendation, a jury trial commenced on
May 24, 2010, and on May 25, 2010, the jury returned a verdict of guilty. (Doc. 10
at 1–2). Therefore, to the extent Mr. Reed objects to the report and recommendation
on this basis, nothing in his assertion provides adequate grounds warranting
equitable tolling.
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Having carefully reviewed and considered de novo the record in this case, the
court ADOPTS the report of the magistrate judge and ACCEPTS his
recommendation. The court OVERRULES Mr. Reed’s objections and
DISMISSES the petition for writ of habeas corpus WITH PREJUDICE.
Furthermore, because the petition does not present issues that are debatable among
jurists of reason, a certificate of appealability is also DENIED. See 28 U.S.C. §
2253(c); Slack v. McDaniel, 529 U.S. 473, 484–85 (2000); Rule 11(a), Rules
Governing § 2254 Proceedings.
The court will enter an appropriate order.
DONE and ORDERED this September 19, 2018.
_________________________________
ANNEMARIE CARNEY AXON
UNITED STATES DISTRICT JUDGE
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